The New EIA Regulations and What It Means For You

Briefing paper, Group News

Environmental Impact Assessment (EIA) is often a key part in major planning applications, which can have many implications for developers, particularly in relation to often pressurised timescales and budgets. Pegasus Group, as an IEMA Quality Mark Member and leading EIA practitioner, is aware of how vital it is that EIA requirements of a specific project are understood as early as possible in the planning process. As key changes come into force on 16th May 2017, it is more important than ever to be clear on how the forthcoming Regulations may affect your projects.

There has been much discussion surrounding the implications of the forthcoming amended EIA Regulations. Pegasus Group has identified the key issues and how these are likely to affect you.

1. Requesting Screening Opinions
Amendment: More information is to be provided within a request for a Screening Opinion from the LPA. This includes measures to avoid significant adverse effects i.e. mitigation. The selection criteria for screening Schedule 2 development also states that the possibility of effectively reducing the impact should be considered when deciding whether EIA is required.

In practice: The screening process is likely to be a more significant task than is often currently undertaken at present through the submission of a ‘screening report’. It provides the opportunity to ‘front load’ the assessment and commit to ‘thought out’ mitigation at the screening stage in the order to negate the need for EIA. Whilst it is encouraging that a ‘screening report’ can help to screen out EIA which may not have been possible under the former Regulations, the upshot is much of the information is required at an early stage. In commercial terms having the required level of detail at this early stage may cause potential problems in progressing proposals.

2. Screening Opinion Timescales
Amendment: The draft Regulations retain the 21 day timescale for LPA to provide its Screening Opinion, despite the suggested 90-day period in the Directive. Currently, the 21 day period can be (and often is) extended through written agreement- it is proposed to limit this to a 90 day cut-off (and also Secretary of State Directions, although there will be provision for extension in exceptional circumstances).

In practice: The likelihood is to expect more requests for extensions from LPA, particularly as Screening Requests will provide an increased amount of information to process.

3. Topics to be considered within EIA
Amendment: Topics to be considered within an Environmental Statement have been amended/expanded to include:
– Human health (formerly covered under the description ‘Human Beings’
– Biodiversity (replacing fauna and flora)
– Effects from major accidents and disasters
– Climate (e.g. greenhouse gas emissions, impacts relevant to adaption)
– Alternatives: increased to include “an indication of the main reasons for selecting the chosen option, including a comparison of environmental effects”.

In practice: As best practice, the above topics are already considered in Pegasus Environmental Statements (ES) as appropriate. It is however important to remember that, as always, the ES should only focus on the pertinent issues with emphasis on the “likely significant” effects. With respect to alternatives, such information is often already included within the ES, however it is important to acknowledge that it is still only necessary to consider the “reasonable alternatives studied by the developer”.

4. Scoping Opinion
Amendment: Scoping requests remain voluntary. If a Scoping Opinion is requested from the LPA, then the ES must be based on the resulting Opinion. The LPA’s Opinion must consider the specific characteristics of the project in question and the likely impact on the environment. This latter point seeks to improve the quality of Scoping Opinions and ensure consultees consider information before setting out any specific requirements.

In practice: Whilst this may assist in improving the quality of Scoping Opinions and assist in narrowing down the scope of assessments to key issues, there is equally the potential for onerous requirements to arise, which would be mandatory. How any scoping opinion can be ‘challenged’ or ‘contested’ is not clear at this stage.

5. Preparation of ES
Amendment: ESs must be prepared by ‘competent experts’ and demonstrate how this has been met. Decision makers (i.e. LPA) must also ensure they have ‘necessary skills in house’.

In practice: There is no definition for a ‘competent expert’, however it is likely that the IEMA Quality Mark (QM) will play a key role within this. Pegasus Group is one of the founding members of the IEMA QM which is a mark of excellence in EIA co-ordination and management. It is also a possibility that LPA may need to sub contract out the reviewing of ESs, should the decision maker have insufficient expertise.

6. Consultation Period
Amendment: ES consultation period increases for Town and County Planning EIA projects from 21 to no less than 30 days (or for infrastructure planning regime it increases from 28 days to 30 days).

In practice: Given the determination period for ES applications is far longer than this time, it is unlikely to have a significant impact on clients timescales. However, this could have implications for clients if further information (e.g. An ES addendum) is required to be submitted and consulted upon in a limited timescale, for example before an application may be heard at planning committee.

7. Monitoring
Amendment: Requirement for significant adverse effects to be monitored (during construction or post-construction).

In practice: This is likely to be dealt with through planning conditions and obligations (i.e. Environmental Management Plans), with longer term monitoring work potentially required. There is however no detail at this time on how this will be audited or enforced.

8. Decision Making and Decision Notices
Amendment: Where consent is granted, LPA notices must include: “reasoned conclusions” for their decision; the environmental conditions and, the measures to avoid, prevent, reduce or offset significant adverse effects (and potentially monitoring measures). Any decision must also be made on what is considered to be ‘up to date’ information at the time a final decision is taken.

In practice: This could potentially give rise to an increased number of requests by the LPA to provide updated environmental information by the virtue of time passing during the determination period. This is a real threat to those long term strategic projects whose determination is delayed, often through no fault of the client. This is a potential issue that may result in numerous ES addendums.

Until these Regulations are commonly in use and tested through legal cases, there will always be some uncertainty in how they may impact on the work undertaken by planning consultancies and the implications for their clients. Further uncertainty looms as the country awaits to see how the Brexit negotiation may further impact UK legislation in due course.

Pegasus Associates Sarah Dauncey and Alison Smith comment.